from the common-sense? dept

We've noted recently, that more and more governments are looking to deal with crime online by censoring it via filters, rather than actually going after those responsible. At least some people are finally realizing that this doesn't make much sense. DH's Love Child points us to the news that some EU politicians, in response to an initial plan to require filters to block sites deemed to have child pornography, have decided that a smarter plan is to actually go after the sources of child pornography:

Members of the Parliament's Civil Liberties Committee ruled that complete removal "at source" must be the main aim in tackling child pornography online and that blocking access to websites is acceptable only in exceptional circumstances -- when the host server in a non-E.U. country refuses to cooperate or when procedures take too long.

The original Commission proposal would have made blocking of child porn websites mandatory for all E.U. member states, prompting concern among Members of the European Parliament (MEPs) who tend to support Internet freedom.

"The new generation of MEPs has shown it understands the Internet and has courageously rejected populist but ineffective and cosmetic measures in favor of measures aimed at real child protection," said Joe McNamee, of the European digital rights movement EDRi. "This is a huge and implausible success for an army of activists campaigning to protect the democratic, societal and economic value of the Internet," he added

Surprising, but nice to see that not all politicians are so clueless when it comes to dealing with crimes that happen online.

The Canadian National History Society was forced to change the name of its magazine, The Beaver, founded in 1920, because the name of the magazine caused it to be blocked by Internet filters.

One teacher wanted to show students some pictures that would illustrate the effects of atomic testing. "However when I went to bring the wikipedia page up at school during class, it was blocked by our internet filter, BESS. The name of the islands? 'Bikini Atoll,'" said Doug Johnson, quoting the teacher. Johnson, a director of media and technology at a Minnesota school district, put out a call in July for stories about how Internet filtering hobbles education, and got an earful. ("Censorship by Omission")

Johnson also shares a message from another teacher, describing how a school's systems security manager decided to block the social bookmarking site delicous.com. The reason? You can use the site to search for porn....

The problem goes back for years. A filter blocked the Web site of former House Majoirty Leader Richard Armey because it detected the word "dick," according to "Internet Filters, a public policy report," a 2001 study from the Brennan Center of Justice. Other software blocked the Declaration of Independence, Shakespeare’s complete plays, "Moby-Dick," and "Marijuana: Facts for Teens," a brochure published by the National Institute on Drug Abuse.

Again, some of these stories appear to be old ones, which the filtering industry insists have been fixed, but these kinds of filters will always create false positives.

The bigger problem, honestly, is that the filters then lead to complacency. Once the schools have filters in place, it gives officials a false sense that things are "safe." And yet, plenty of bad stuff gets through, while good stuff gets blocked. This isn't to say that filters have no use at all, but it's about time people learned not to rely on them so heavily.

from the changing-copyright-law-through-lawsuits dept

We're seeing more and more analysis of the summary judgment motions filed by both sides in the YouTube lawsuit between Google and Viacom. Unfortunately, many sites are basing their analysis on the out of context quotes Viacom pulled out of some emails -- despite the fact that the evidence doesn't actually support what it claims. One particularly laughable analysis was done by a group funded by the entertainment industry, which not only takes those quotes out of context and considers them proof, but then completely misinterprets Google's filing as well. The writer, George Ou, seems to think that the point of Google's filing is to show that since Viacom used YouTube, it shouldn't file a lawsuit. But that's not at all what Google's motion said. The point wasn't that Viacom used YouTube, but that it uploaded all sorts of content in secretive ways -- ways that would make it impossible for Google to know what was and was not infringing. Furthermore, the arguments were about how Viacom set up a complex set of ever changing rules that confused even Viacom's partner in issuing takedowns, and yet expected Google to be able to magically know what Viacom wished taken offline, and what should be left online. Oddly, Ou seems to have missed all of that, despite it being the central point to Google's motion. He also falsely claims that Google is suggesting if Viacom uploaded some content, that means everyone should be able to do so. Google said no such thing. It's merely pointing out that Google is in no position to know what Viacom is authorizing and what it is not -- and according to the law, that means Google need not try to guess.

A much better analysis, that really cuts through the clutter and highlights the key point of the case, is the one by the EFF's Fred von Lohmann, where he notes (as Eric Goldman did) that in a footnote, Viacom admits that it's fine with all of YouTube's actions after May of 2008, when it implemented its own filtering technology. Once you realize that, it becomes clear: Viacom is claiming that the DMCA requires filters. Yet, the DMCA is explicit that this is not true, and always has been. In fact, if I remember correctly, Paramount Pictures top lawyer (Paramount is a Viacom subsidiary) said in a discussion we wrote about last year, that he felt the current DMCA was deficient, in that it had a notice-and-takedown provision, rather than requiring proactive monitoring.

And yet, by Viacom's own (indirect) admission in this lawsuit, it seems to believe that the DMCA requires proactive monitoring:

So what Viacom is asking for here is a radical re-write of the DMCA that, if accepted, would put all kinds of online service providers at risk of huge statutory damages for copyright infringement. Is eBay used to commit copyright infringement every day by some users? Sure. Do people use Microsoft's Bing to find infringing materials? Check. Do online lockering services get used to store infringing materials? Do users send infringing email attachments? How about the "send file" features of every instant messaging system? The only reason these (and many other) online services exist is because the DMCA safe harbors give them rules to follow that are much clearer than the murky standards for "secondary liability." If Viacom is right, then there are no clear rules to follow, except "beg permission from every copyright owner first." And that's a rule that would hobble innovation and competition online.

So please pay careful attention to the actual arguments being made here. No one is saying that copyright infringement should be allowed on YouTube. The only question is whether or not it should be YouTube's responsibility to proactively monitor that content and stop it from being uploaded. The law is pretty clear that this is not required -- and, as Google's filing makes clear, even if it were required, given Viacom's own actions, this would be impossible.

from the all-depends-on-how-you-ask-the-question dept

Ah, the fun you can have with survey data. It's well known that if you get to control how survey questions are worded, you can get large groups of people to support almost anything. Take, for example, what's happening down in Australia with the fight over the government's latest plan (after many previous attempts) to force filters on the entire internet, requiring ISPs to block a secret list of sites the gov't doesn't like. A lot of people are up in arms about this blatant censorship. But supporters of the plan can eagerly point to a recent survey that got 80% of people to say they were in favor of "having a mandatory Government Internet filter that would automatically block all access, in Australia, to overseas websites containing material that is Refused Classification." 80%? That seems really surprising.

detailed instructions on or promotion of crime, violence or use of illegal drugs

You read that list -- especially given what it starts off with -- and who's going to say "no, I want to make sure that's available"? Not that many people. Obviously, they're going to say they support blocking it. But that doesn't really mean they support government censorship. It seems quite likely that what people want is for the government not to focus on useless and expensive censorship campaigns, but to focus that same effort on catching those who are actually breaking the law and stopping them from engaging in the illegal activities. In fact, the very same study found that 91% don't like the fact that the government will be censoring the internet via a secret list. Basically, people don't want government censorship, but that doesn't mean they support the things in the list. It's just that they would prefer the government do something real to stop it, rather than brushing it under a digital rug.

from the let's-take-a-look... dept

So after months and months of people asking the USTR to reveal what's in ACTA, Public Knowledge finally got Stan McCoy to confirm that it won't include three strikes or mandatory ISP filtering. While some of the other leaks had indicated that both were on the table at some point, it's good to see the USTR confirm that they're not, though it's still not clear why they won't reveal what is in the document.

Still, that doesn't mean it won't impact US law in potentially dangerous ways. In particular, a lot of what it will try to do is lock in US case law that hasn't been established by Congress, and which other countries have differing opinions on. So, for example, if it locks in contributory liability (something the courts have ruled on, but Congress never included in the law), it will massively hinder Congress' ability to fix this mistake by the courts. As Sherwin Siy, from Public Knowledge noted:

That analysis hints at changes to international norms on "third party liability"--such as contributory infringement, vicarious liability, or inducement of infringement.

These are areas of law that, in the U.S., are defined almost entirely by court decisions, which build in nuances and balance to the application and enforcement of the law. One of the dangers of trying to codify these doctrines into an international agreement is that it can freeze the law as it is currently, preventing the courts from adapting case law to adjust for new developments in business, technology, and culture. There’s also the risk that binding the United States to an international set of standards will actually hamper Congress from enacting needed reforms to our copyright system.

Nor can we so quickly dismiss concerns about filtering and 3 strikes policies--even if the U.S. isn't pushing for legal obligations or mandates, there has been a constant, concerted effort by the largest record labels and movie studios over the past year or more to negotiate their own private 3 strikes agreements with ISPs. Filtering also remains a big topic for content industry lobbyists. Both of these measures, even if not mandated by laws, are often pressed upon ISPs and their customers as "voluntary" agreements, with threats of expensive lawsuits waiting in the margins if they don't comply. Even without mandating these procedures, laws, treaties, and executive agreements like ACTA can give them a great deal of cover by endorsing such "private agreements," adding a veneer of legitimacy to practices that otherwise would raise greater alarm at their impact on privacy, or simply their false positive rate. ACTA's focus on penalties can also incentivize potential plaintiffs to push harder, and for potential defendants to cave.

Indeed, what many people have pointed out is that the really pernicious part of ACTA is in reading between the lines. There are already international agreements on intellectual property that include clear safe harbors and consumer protection. What's notable in the leaked drafts of ACTA is that such things are missing. So even if it doesn't force the US to change the law, it could very much hinder attempts by US to come to its senses and fix the broken parts of the law.

Just as we were discussing problems with the DMCA today, the drafts of ACTA suggest that they will lock in some of the DMCA's worst features, such that the US would be hindered in correcting those mistakes, and, even worse, other countries would be prevented from putting in place better solutions as well, which could be useful in convincing US politicians that the more draconian parts of the DMCA are a mistake. ACTA doesn't need to explicitly change US law today to have a serious impact on US law in constraining Congress from fixing its broken parts. Things like secondary liability, which were entirely decided by the courts, despite not appearing anywhere in the law, are quite problematic -- and ACTA is looking to lock them in, so that Congress couldn't even fix that mistake by the courts. That's a serious problem.

from the speaking-from-ignorance...-and-admitting-it dept

It's one thing to speak from a position of ignorance, but admitting it and still then taking a strong position? That's something special. U2's Bono kicked off quite a firestorm by insisting that having ISPs monitor everything was a good way to deal with unauthorized file sharing online, citing China's success with internet censorship (failing to realized that it hasn't been that successful in reality). This resulted in widespread criticism of Bono and it appears that Nirvana's bass player, Krist Novoselic, has stepped up to defend Bono (found via Karl Bode). But what's stunning about Novoselic's "defense" is that he flat out admits he doesn't really understand the details and still defends Bono:

I'll admit that I'm not up to speed on having ISPs regulate copyrighted material, but here's why I agree with Bono on the idea of compensation for content providers

So he doesn't understand the issue, but he supports Bono's position anyway? Yeah, that's reasonable. And the worst part is the end of that sentence. It implies that some people out there don't support compensation of content providers. That's silly. Everyone supports the compensation of content providers -- they just don't support that compensation coming from some sort of involuntary tax put on internet connections. Assuming that being against ISP tracking and payments means that there's no other way for content providers to get paid is simply wrong.

The rest of his post is interesting, but either pulls out some old canards or is self-contradictory. For example, he confuses "value" with "price" by warning that music can't be worth nothing. Yet, at the same time, he goes on and on about how great things like YouTube and Twitter are for promoting his music -- while also wishing they would pay him for promoting his music. He never seems to put two and two together to realize that by promoting music and bands, a fan base is built up that helps an artist make more money -- and YouTube and Twitter are doing this for free. Prior to the internet becoming mainstream, if a musician wanted to communicate with fans, it was an expensive and time consuming direct mail process. Now Twitter has made that free for bands. Before, if a band wanted to get fans to see its videos, it had to hope it could get them on MTV. Even after the internet came about, communicating with fans was still expensive and time consuming, as was posting videos. Twitter and YouTube have made these things much easier, faster and cheaper for bands. And he's complaining?

from the do-these-guys-ever-make-sense dept

I've been trying not to respond to every RIAA blog post these days, but it's hard to let certain things go when they so rarely make any sense. For example, RIAA President Cary Sherman recently talked up the new regulations that force colleges and universities to "take proactive steps" to stop file sharing. He goes on to make it sound like universities decided to do this in the spirit of "teamwork" with the RIAA, rather than because they risked serious financial consequences under the law for not complying. He also leaves out the fact that tons of colleges and universities are pissed off and complaining about how much time, effort and money they're wasting on this just because Sherman and his friends still don't seem able to embrace modern music business models. Colleges and universities have enough to worry about without the government forcing them to act as the RIAA's police force. If it were truly about teamwork, Cary, you wouldn't have had to spend so much time getting Congress to pass a law to force them to do this.

from the yeah,-sure... dept

Malaysia's government has had something of a love-hate affair with citizens and opposing politicians using blogs and other social media to protest the government -- and has even sent opposition bloggers they don't like to jail. So, you can imagine the concern when the government announced plans to install widespread internet filters modeled on China's fault "Green Dam" software. Not surprisingly, the government officials back the plan insist it won't be used against political targets, but just obscene material. Opponents find that hard to believe. Even if (and it's a big "if") that's the intent of the government, having it be so easy to "accidentally" start blocking opposition sites is probably too tempting for many.

from the why-do-i-get-the-feeling-this-will-be-ignored dept

A bunch of folks have been sending in the link to Boing Boing's report about a new research paper highlighting just how useless, ineffective and damaging it will be if governments or the entertainment industry force ISPs to start trying to crack down on file sharing. The researchers make a pretty compelling case (though, certainly, I was inclined to agree with them going in) that any such attempt will not do a damn thing to slow down file sharing, but will represent a significant risk of violating users' privacy or disconnecting them from the internet for perfectly innocent actions. So, the next time we hear politicians pushing such a solution, it might be worth sending them a copy of this report -- though, it probably won't do much good if that politician has received enough campaign contributions from the entertainment industry.

from the just-what-we-didn't-need dept

One of our big fears with the stimulus bill was that with such a huge deal, there would be plenty of small opportunities for lobbyists to slip in absolutely awful language. Well, it's happening. Sen. Feinstein has inserted language into the stimulus bill that would officially "allow network management" for "deterring unlawful activity" including "copyright infringement." Of course, right before "copyright infringement" it also lists "child pornography" because no politician wants to be seen as voting against something that stops child pornography. As Public Knowledge points out, the whole thing doesn't make much sense. Network management tools are different than content filtering tools -- so saying that the use of network management tools is necessary for the sake of content filtering is a red herring. And, if this does involve deep-packet inspection, as is implied by the amendment, it seems like a huge privacy violation, allowing an ISP to spy on everything you do online. Public Knowledge is trying to get out the word that this should not be allowed in the stimulus bill.